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[Federal Register Volume 78, Number 180 (Tuesday, September 17, 2013)]
[Rules and Regulations]
[Pages 57067-57073]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-22607]

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DEPARTMENT OF DEFENSE

DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 17

RIN 2900-AN92

Vet Center Services

AGENCY: Department of Defense and Department of Veterans Affairs.

ACTION: Final rule.

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SUMMARY: The Department of Veterans Affairs (VA) is establishing in 
regulation the readjustment counseling currently provided in VA's Vet 
Centers to certain veterans of the Armed Forces and members of their 
families, and implementing provisions of the Caregivers and Veterans 
Omnibus

[[Page 57068]]

Health Services Act of 2010 regarding readjustment counseling.

DATES: Effective Date: This final rule is effective October 17, 2013.

FOR FURTHER INFORMATION CONTACT: Gregory Harms, Readjustment Counseling 
Service (10P8), Veterans Health Administration, Department of Veterans 
Affairs, 810 Vermont Avenue NW., Washington, DC 20420, (202) 461-6525. 
(This is not a toll-free number.)

SUPPLEMENTARY INFORMATION: This final rule articulates in regulation 
our authority to establish Vet Centers to furnish counseling to certain 
veterans upon request, as set forth in 38 U.S.C. 1712A. It also meets a 
rulemaking requirement prescribed by Congress in section 401 of the 
Caregivers and Veterans Omnibus Health Services Act of 2010, Public Law 
111-163 (the 2010 Act), and implements sections 304 and 401 of the 2010 
Act, by authorizing Vet Centers to provide readjustment counseling to 
certain veterans described in section 304, their families, and certain 
members of the Armed Forces set forth in section 401. Finally, this 
rulemaking implements section 402 of the 2010 Act by authorizing Vet 
Centers to provide certain referral services. Although VA has provided 
readjustment counseling under 38 U.S.C. 1712A without a regulation in 
the past, in the interests of clarity and completeness, this final rule 
covers the provision of benefits to veterans under section 1712A as 
well as benefits provided under the 2010 Act.
    In a document published in the Federal Register on March 13, 2012 
(77 FR 14707), VA proposed to amend part 17 of 38 CFR by adding a new 
Sec.  17.2000, which would contain the provisions described above. We 
provided a 60-day comment period, which ended on May 14, 2012. We 
received 15 comments from members of the general public.
    Several commenters agreed with all or part of the proposed 
rulemaking and expressed support for the regulation. We did not make 
any changes based on these comments.
    Another commenter supported the provision of readjustment 
counseling but was concerned because ``it has been argued by many 
veterans that they were denied these services for many reasons.'' We 
cannot respond to the commenter's concerns about denials of treatment 
because the comment did not recommend any changes to the proposed rule, 
nor did it include any specific circumstances under which a veteran was 
denied readjustment counseling. Moreover, addressing any such 
circumstance is beyond the scope of this rulemaking. Also, we are not 
aware of an ongoing problem of Vet Centers denying readjustment 
counseling to eligible veterans. In the proposed rulemaking, we stated 
that VA has implemented the statutory authority under 38 U.S.C. 1712A 
to ``establish Vet Centers that must furnish counseling to certain 
veterans upon request'' without regulations. We would expect to 
eliminate or significantly reduce the problem described by the 
commenter, if any such problem exists, through this rulemaking.
    The commenter also stated that ``the majority of the population 
does not know a lot about'' the services provided at Vet Centers. VA is 
not aware of this problem, i.e., that a significant proportion of the 
eligible veteran population does not know about VA's Vet Center 
program. We provide face-to-face outreach, education, and referral to 
veterans and their families. However, if such a problem exists, this 
regulation will facilitate the implementation of the readjustment 
counseling program in the Vet Centers and clearly and publicly indicate 
the various services that are included in the definition of 
readjustment counseling. VA hopes that this rulemaking, in addition to 
other outreach programs, will alert veterans to the readjustment 
services provided in the Vet Centers. We did not make any changes based 
on this comment.
    A commenter stated that VA should require screening for problems 
related to readjustment issues to better assist those veterans who are 
in need of treatment but who may believe they will ``not have trouble 
readjusting or are too stubborn to seek such counseling'' or whose 
``problems manifest themselves when they are already thrown in the 
jungle of everyday life and their lives become too busy to seek such 
counseling.'' The commenter also indicated support for the proposed 
rule because it provided readjustment counseling for the whole family, 
which assists the transition into the community.
    The commenter makes a valid point in that part of successful 
readjustment counseling is knowing when a veteran is in need of 
assistance. VA has addressed this issue by providing outreach programs 
that are available to veterans and servicemembers in Vet Centers and 
other VA facilities. Some of the outreach programs include the Vet 
Center Combat Call Center (877-WAR-VETS), which is an around-the-clock 
confidential call center where combat veterans and their families can 
call to talk about their military experience or any other issue they 
are facing in their readjustment to civilian life, as well as the 
Veterans Crisis Line, which connects veterans in crisis and their 
family and friends with 24-hour online chat or text messaging. There 
are mobile applications, such as the Post-Traumatic Stress Disorder 
(PTSD) Coach, that assist veterans in managing their PTSD. Outreach is 
also part of the veteran's primary VA care. But no matter how extensive 
our outreach and how convenient our services may be, VA cannot require 
a veteran to come to a Vet Center, nor can we intervene in the ``every 
day'' lives of veterans who do not seek assistance. Therefore, although 
we agree with the commenter's sentiments, we did not make any changes 
based on this comment.
    Another commenter indicated strong disagreement with the 2010 Act, 
stating that all veterans ``deserve counseling when they return home.'' 
The commenter further stated that if veterans are not able to ``turn to 
the VA for counseling, then I believe they have no one to turn [to].'' 
We assure this commenter that neither the 2010 Act nor this rulemaking 
restrict veteran eligibility for readjustment counseling. On the 
contrary, this rulemaking expands the services provided by Vet Centers 
and makes the services available to a broader pool of qualified 
individuals. VA may now provide readjustment counseling to 
servicemembers as well as veterans who served on active duty in 
Operation Enduring Freedom (OEF) or Operation Iraqi Freedom (OIF), and 
to the families of these servicemembers and veterans. We can also 
provide certain referral services to those individuals who are not 
otherwise eligible for Vet Center services. By broadening the pool of 
qualified candidates who can receive readjustment counseling, VA is 
maintaining its commitment to improve the mental health of veterans and 
help these veterans, their families, and servicemembers to successfully 
integrate back to civilian life. We did not make any changes based on 
this comment.
    Commenters questioned the 3-year time limit set forth in section 
304 of the 2010 Act, and appeared to be confused as to whether VA would 
enforce that time limit. In the proposed rulemaking we stated that 
section 304 of the 2010 Act authorizes readjustment counseling for the 
immediate family of Operation Enduring Freedom and Operation Iraqi 
Freedom veterans for a period of 3 years after such veterans return 
from deployment. 77 FR 14709. However, we further explained that we 
have authority to provide readjustment counseling under 38 U.S.C. 
1712A, 1782, and 1783, and that authority is actually broader because 
it does not have the 3-year

[[Page 57069]]

limitation found in section 304 of the 2010 Act and is not limited to 
OEF/OIF veterans. For this reason, we proposed in Sec.  17.2000(a)(5) 
that VA would provide readjustment counseling to family members of the 
veteran or servicemember, without setting a time limit to the provision 
of such readjustment counseling. We hope that this explanation further 
clarifies this issue for the commenters, and we did not make any 
changes based on this comment.
    Some commenters asked for a clear definition of ``immediate family 
member.'' One commenter stated that this rulemaking would restrict 
``some family members from accessing appropriate counseling'' because 
``[t]here is no statutory or regulatory definition of `immediate 
family' for purposes of readjustment counseling.'' The commenter 
further stated that in most states ``same-sex parents cannot both 
create legal relationships with their children.'' According to the 
commenter, such lack of legal recognition would prevent same-sex 
couples and their families from obtaining readjustment counseling. The 
commenter suggested that VA define the term ``immediate family'' to 
include ``all spouses, domestic partners, children (including those for 
whom the veteran stood in loco parentis), and parents (including those 
who stood in loco parentis to the veteran), regardless of their legally 
recognized relationship to the veteran.'' The commenter added that this 
definition would apply for determinations of eligibility for all 
counseling services provided by Vet Centers, to include readjustment 
counseling and bereavement counseling under 38 U.S.C. 1782 and 1783.
    We are making several changes to the final rule based on this 
comment. First, the commenter correctly points out that there is a need 
to define ``immediate family;'' however, in so doing, the commenter 
underscores a weakness in the proposed rule. In the proposed 
rulemaking, we explained that our authority to provide Vet Center 
services to veterans' family members originates in 38 U.S.C. 1712A, 
1782, and 1783, not in section 304(a)(2) of the 2010 Act. 77 FR 14709. 
Section 304 of the 2010 Act reaffirmed VA's Vet Center practices in 
this regard, but it is not the legal foundation for them.
    Section 304 of the 2010 Act used the term ``immediate family;'' 
however, in light of our interpretation of sections 1712A, 1782, and 
1783 as providing the foundation for this rule, we now believe that the 
final rule should use the term ``family member'' and not ``immediate 
family member.'' As raised by the commenter, the word ``immediate'' 
does not accurately describe the broad cohort of persons to whom Vet 
Centers extend readjustment counseling in order to support a veteran's 
readjustment to civilian life and is not required based on the 
expansive authority for Vet Centers. First, 38 U.S.C. 1712A authorizes 
VA to provide counseling to assist veterans in adjusting to civilian 
life, which we interpreted broadly to include family and marriage 
counseling that would support the veteran during the adjustment period. 
77 FR 14709. Second, 38 U.S.C. 1782 specifically authorizes VA to 
provide counseling, training, and mental health services for members of 
a veteran's ``immediate family,'' but also to the legal guardian of a 
veteran, a family caregiver, and the individual in whose household the 
veteran intends to live. Third, 38 U.S.C. 1783 authorizes VA to provide 
bereavement counseling to a broad cohort including individuals who were 
treated under 38 U.S.C. 1782, immediate family members, and the 
veteran's parents. Moreover, Congress has not established clear 
limitations on the authority for VA to provide Vet Center services to 
family members in any of these authorities. It is not clear why 
Congress used the phrase ``immediate family member'' in section 
304(a)(2); however, section 304 is also somewhat internally 
inconsistent as it also requires VA to provide assistance in ``the 
readjustment of the family'' in subparagraph (C) of subsection (a)(2). 
In order to assist in the readjustment of ``the family,'' Vet Center 
services must in some situations be provided to individuals who might 
not be in the veteran's ``immediate'' family if we were to interpret 
that term narrowly.
    Striking the word ``immediate'' from proposed Sec.  17.2000(a)(5) 
does not resolve all of the commenters' concerns. There is still a need 
to define which members of a veteran's family can be serviced by Vet 
Centers, and whether such members may include same-sex partners and/or 
members of a same-sex couple's family. There is little statutory 
guidance on this matter. First, we turn to the 2010 Act itself, which, 
in title I (which established VA's Program of Comprehensive Assistance 
for Family Caregivers (Caregivers Program)), broadly defined a 
veteran's family to include a parent, spouse, child, step-family 
member, extended family member, and anyone who lives with the veteran. 
The purposes of these programs are also similar. The purpose of the 
Caregivers Program is to assist certain disabled active duty 
servicemembers and veterans by supporting family members who help these 
disabled individuals live in the community, including during the time 
that such individuals are transitioning to civilian life. The purpose 
of Vet Centers includes assisting veterans by helping their families 
with readjustment issues common among veterans.
    Moreover, section 103 of the 2010 Act specifically amended 38 
U.S.C. 1782, one of the foundational authorities for Vet Centers, to 
require VA to provide section 1782 counseling to family caregivers. 
Therefore, at least to the extent that Vet Center services are 
authorized by 38 U.S.C. 1782, we must provide them to the same family 
members of the veteran who are included as family members under the 
Caregivers Program.
    Based on the connections between the Caregivers Program and the 
services provided in Vet Centers, as well as the various authorities 
described above that authorize Vet Centers to provide service to family 
members, we believe that it is appropriate to use a definition of 
``family member'' for purposes of the Vet Center program that is 
similar to the definition set forth in the statute and regulations 
relating to the Caregivers Program. As noted above, a ``family member'' 
is defined by 38 U.S.C. 1720G(d)(3) as a member of the family of the 
veteran, including the veteran's parent, spouse, child, step-family 
member, and extended family member, or someone who lives with the 
veteran but is not a member of the family of the veteran. Under 38 CFR 
71.25(b), we similarly established in regulation that these are the 
family members who may participate as Primary or Secondary Family 
Caregivers. Therefore, we include these same individuals as family 
members for purposes of Vet Center benefits in paragraph (a)(5) of 
Sec.  17.2000.
    Adopting this definition will resolve the commenters' concerns. 
Although we do not adopt the commenters' specific wording, our 
definition would encompass domestic partners, spouses, children, and 
parents. It would also include individuals whose relationship to the 
veteran is ``in loco parentis,'' which the commenter defines as persons 
who have day-to-day care duties over the veteran or over whom the 
veteran has day-to-day care duties, so long as these individuals live 
with the veteran. It would also include transgendered individuals, 
again, so long as they meet one of the criteria of the regulation, 
which includes individuals who live with the veteran. It is important 
to remember that, as discussed extensively in the proposed rule, the 
purpose of Vet Center

[[Page 57070]]

counseling is to assist the veteran or servicemember in readjusting to 
civilian life. The broad definition suggested by the commenter and 
adopted in this final rule serves that broad purpose.
    The above analysis and justification for the use of the Caregivers 
Program's definition of family member clearly applies to those whose 
eligibility is predicated on a veteran's (or veteran's family member's) 
eligibility for services under 38 U.S.C. 1712A, 1782, and 1783. 
However, these authorities do not authorize VA to provide readjustment 
counseling to servicemembers. Our authority to provide readjustment 
counseling to servicemembers comes from section 401 of the 2010 Act. 
Nevertheless, in the proposed rule, we stated that we did not believe 
Congress intended to authorize Vet Centers to provide lesser 
readjustment counseling services to servicemembers than those that we 
provide to veterans. Moreover, section 401 specifically authorizes the 
provision of services under 38 U.S.C. 1712A, which, again, we believe 
authorizes the provision of readjustment counseling to family members 
when to do so would benefit the veteran. Therefore, we believe that the 
same definition of family members should apply whether we are providing 
readjustment services to veterans or servicemembers.
    A commenter stated that the proposed rule did not include veterans 
who had non-combat injuries or illnesses. The commenter stated that 
non-combat veterans should ``qualify because an injury or illness that 
is service-connected, regardless if it occurred in a combat or non-
combat situation, will still have a devastating impact to the service 
member and veteran along with their family members.'' The commenter 
recommended that eligibility for readjustment counseling should be 
linked to the veteran's service-connected condition, regardless of 
whether such condition was incurred in combat.
    Under 38 U.S.C. 1712A(a)(1)(B) readjustment counseling may be 
provided by VA to servicemembers or veterans who served on active duty 
in a theater of combat operations during a period of war or to 
servicemembers or veterans who served on active duty in an area where 
hostilities occurred or in combat against a hostile force during a 
period of hostilities. Although VA is able to provide mental health 
care to non-combat servicemembers and veterans as part of the medical 
benefits package, section 1712A does not support providing readjustment 
counseling to non-combat servicemembers or veterans. VA cannot amend 
this statutory authority through regulation. We did not make any 
changes based on this comment.
    The commenter was also concerned that the term ``Armed Forces'' 
does not include the Commissioned Corps of the Public Health Service 
(PHS) or the National Oceanic and Atmospheric Administration (NOAA). 
The commenter recommended the use of the term ``Uniformed Services'' 
instead of ``Armed Forces.'' Section 17.2000(a)(4) states that VA will 
provide readjustment counseling to any member of the Armed Forces, 
including a member of the National Guard or reserve, who served on 
active duty in the Armed Forces in Operation Enduring Freedom or 
Operation Iraqi Freedom. Although the term ``Armed Forces'' is not 
defined in the regulation, under 38 U.S.C. 101(10), the term ``Armed 
Forces'' means ``the United States Army, Navy, Marine Corps, Air Force, 
and Coast Guard, including the reserve components thereof.'' In 
establishing our authority to provide Vet Center services to active 
duty servicemembers, we believe that Congress clearly meant that we 
limit eligibility to members of the Armed Forces who served on active 
duty. Members of the Armed Forces do not include individuals in PHS or 
NOAA, even if those individuals served on active duty. Our 
interpretation is supported by the fact that Congress specifically 
included members of the National Guard under section 401(a) of the 2010 
Act but did not extend eligibility to PHS or NOAA. We note that we are 
constrained from making a broader interpretation in this case because, 
unlike the definition of ``family member'' discussed above, the 
eligibility for active duty servicemembers is clearly established by 
section 401 of the 2010 Act and is not part of the foundational 
authority for Vet Centers set forth in 38 U.S.C. 1712A, 1782, and 1783. 
We believe that extending our authority in such a manner would 
contravene the statute and, therefore, we did not make the change 
requested by the commenter.
    The commenter further indicated that the rulemaking should define 
the types of readjustment counseling services that the family members 
of the servicemember and veteran are eligible to receive. The commenter 
questioned whether the family members qualify for the readjustment 
counseling benefits as defined in proposed paragraph (d) or if the 
family members are only eligible to receive certain benefits.
    The commenter presents a valid point. Readjustment counseling 
services provided to servicemembers and veterans are not the same as 
the readjustment counseling services provided to the family members of 
servicemembers and veterans. Under 38 U.S.C. 1712A, we provide Vet 
Center services only if to do so would assist the veteran in adjusting 
to civilian life. Under 38 U.S.C. 1782, we are authorized to provide 
certain consultations, marriage, and family counseling to family 
members of veterans ``as necessary in connection with'' VA's treatment 
of the veteran, and some of these types of counseling are provided 
through our Vet Centers. Under section 304 of the 2010 Act, we are 
authorized to provide education, support, counseling, and mental health 
services to family members of servicemembers and veterans of Operation 
Enduring Freedom and Operation Iraqi Freedom to assist in the 
readjustment of the servicemember or veteran, the recovery of the 
individual from an injury or illness, or the readjustment of the family 
following the return of the individual to family life. In short, all 
services provided through Vet Centers to family members are premised on 
whether the provision of the services will aid in the readjustment of 
the servicemember or veteran. In response to the comment, we have 
clarified Sec.  17.2000(d) to specify this limitation.
    We do not believe that it is necessary to further specify when the 
services included in the definition of readjustment counseling can be 
provided to family members because any of the listed services could be 
provided under appropriate circumstances. For example, it might be 
necessary to involve family members when providing individual 
counseling, group counseling, and marital and family counseling for 
military-related readjustment issues. An assessment of whether the 
family member needs substance abuse treatment might be appropriate as 
well, particularly for those veterans who themselves need to live in a 
``drug free'' environment. When employment issues present a challenge 
to the veteran's readjustment, a family-based approach might be 
necessary. Readjustment of a veteran who experienced military sexual 
trauma may, in some cases, involve support or counseling for a family 
member. Even a psychosocial assessment is defined as a ``holistic'' 
assessment under Sec.  17.2000(d) and therefore, in some cases, might 
involve a family member.
    We note that Vet Center services are provided by mental health 
professionals (e.g., social workers, counselors, psychologists) and are 
not provided by a medical professional. Therefore, to the extent that 
family members require medical intervention, it would not be

[[Page 57071]]

provided at a Vet Center--just as medical intervention would not be 
provided for a veteran at a Vet Center. For the scope of medical 
benefits provided to family members under 38 U.S.C. 1782, please see 38 
CFR 71.50.
    The commenter also stated that the rule does not specify the 
circumstances under which a family member would qualify for individual 
counseling. The commenter queried whether the eligibility was tied to 
the veteran's health or if the family member was ``eligible for 
individual counseling as long as the veteran/service member meets one 
of the four eligibility criteria.'' The commenter recommended that VA 
clearly define eligibility for individual counseling by family members, 
and how such family members can request readjustment counseling.
    If the veteran or servicemember meets one of the criteria listed in 
paragraphs (a)(1) through (a)(4) of Sec.  17.2000, the family member 
qualifies for readjustment counseling. This is stated in paragraph 
(a)(5). The introductory sentence to paragraph (a) states that VA will 
provide readjustment counseling ``upon request'' of any of the 
individuals listed in paragraphs (a)(1) through (a)(5). Therefore, a 
family member of the servicemember or veteran may request readjustment 
counseling simply by calling the Vet Center and requesting an 
appointment. A formal application is not needed. We do not believe that 
further clarification is needed and did not make any changes based on 
this comment.
    A commenter stated that the proposed rule intended to include 
Operation New Dawn (OND), however, OND was not listed under the section 
governing eligibility for readjustment counseling. In the Supplementary 
Information section of the proposed rulemaking we stated that ``after 
consultation with the Department of Defense, VA considers Operation New 
Dawn to be part of the same contingency operation that was formerly 
called Operation Iraqi Freedom. Therefore, VA will consider 
participants in Operation New Dawn to be eligible for benefits under 
the legal authorities pertaining to Operation Iraqi Freedom.'' As noted 
by the commenter, we did not list Operation New Dawn in proposed Sec.  
17.2000(a)(4). To avoid any confusion that may arise in the future, we 
have added Operation New Dawn to paragraph (a)(4) as a qualifying 
theatre of combat operations for servicemembers and veterans to be 
eligible to receive readjustment counseling.
    We received six comments expressing concern that the Vet Centers 
would no longer offer bereavement counseling to the veteran's families 
because the definition of readjustment counseling in proposed Sec.  
17.2000(d) had not referenced bereavement counseling. We agree with 
these six commenters regarding the value of bereavement counseling and 
wish to clarify that bereavement counseling continues to be one of the 
services provided by the Vet Centers. We note that the Supplementary 
Information section of the proposed rule discussed the availability of 
bereavement counseling and cited the authority for it (38 U.S.C. 1783), 
but we inadvertently failed to list it as part of the readjustment 
counseling services provided under the rule. We have amended paragraph 
(d) accordingly, and have amended the listed statutory authority to 
also include section 1783. Also, in keeping with the discussions above, 
we have added 38 U.S.C. 1782 to the statutory authority, as well as 
sections 304 and 402 of the 2010 Act.
    A commenter requested that VA expedite the implementation of 
sections 401 and 402 of the 2010 Act because it has been two years 
since the authorizing statute was passed. VA's section 402 authority to 
provide referrals is established in statute and is already being 
implemented by our Vet Centers. However, our authority to provide 
readjustment counseling to members of the Armed Forces is predicated 
explicitly on the promulgation of regulations under subsection (c) of 
section 401 of the 2010 Act. VA may not implement this final rulemaking 
until after it is published in the Federal Register. This rulemaking 
will be effective 30 days after its publication. We did not make any 
changes based on this comment.
    This commenter also requested that VA provide a strong outreach 
effort to servicemembers and veterans in order to make them aware of 
the benefits of readjustment counseling. The commenter urged that 
outreach efforts to servicemembers should emphasize that treatment in 
the Vet Centers is ``confidential and un-reportable to their military 
line commanders or armories, or even to VA medical and mental health 
authorities (unless severe psychiatric emergencies were apparent to Vet 
Center personnel, in which case they should be referred for immediate 
medical and psychiatric assistance, either within [Department of 
Defense (D[o]D)] or VA facilities).''
    A commenter was concerned with the confidentiality of Vet Center 
records. Specifically, proposed paragraph (b)(4) had permitted VA to 
independently coordinate with DoD in order to verify a servicemember's 
or veteran's service in a theatre of combat operations or in an area 
during a period of hostilities in that area. The commenter stated that 
``if VA were to attempt to verify that individual through D[o]D 
systems, a line commander and/or D[o]D medical authorities could obtain 
that individualized information related to the query. Given the well-
recognized mental health stigma associated with the military, we 
believe this planned approach by VA would be unwise and might well 
serve as a dampener on these individuals' interest in participating in 
readjustment counseling through VA.'' The commenter did not believe it 
was Congress' intent that DoD officials learn the identity of 
individuals who may seek readjustment counseling.
    We agree with the commenter, which is why in paragraph (e), we 
state that records of the benefits furnished by the Vet Centers will be 
maintained with confidentiality and independent of other VA or DoD 
medical records. VA will not disclose the readjustment counseling 
records without the servicemember's or veteran's voluntary signed 
authorization. However, the commenter was correct in that we did not 
recognize the potential inadvertent disclosure of a veteran or 
servicemember's identity through the independent verification 
authorized by proposed paragraph (b)(4). Therefore, we have removed 
that paragraph from the final rule.
    In the Supplementary Information section of the proposed rulemaking 
we explained that proposed paragraph (b)(4) was intended to authorize 
VA to support a veteran in obtaining the proof required to establish 
eligibility. Rather than do so through explicit independent 
coordination with DoD, we amended paragraph (b) to include a provision 
that would allow for VA assistance in obtaining proof of eligibility at 
the individual's request. This will allow persons who believe that 
their anonymity may be jeopardized by involving VA in obtaining a copy 
of their Report of Separation or DD Form 214 to attempt to establish 
their eligibility through other means.
    A commenter urged VA to maintain adequate staffing in the Vet 
Centers and that Congress approve funding for the Vet Centers through 
appropriations. The commenter also urged VA to negotiate with DoD ``a 
cost-sharing agreement, as envisioned in Public Law 97-174, to cover 
the VA's costs of service members' care based on date verifying the 
number of service members who access such counseling under this new 
authority, or that Congress authorize VA additional appropriations 
specifically for this care

[[Page 57072]]

of the active force, as well as the cost of the additional staff needed 
to provide the new services.''
    VA agrees with the commenter in that we anticipate an increase in 
the number of servicemembers, veterans, and family members requesting 
readjustment counseling. To accommodate this increase, VA anticipates 
hiring 62 new full time equivalent employees over the next 3 years. VA 
has allotted this increase in expenditure in the Vet Center's budget. 
Although this rulemaking is in conjunction with DoD, the allocation of 
funds does not fall within DoD's budget, as recommended by the 
commenter. VA has the sole responsibility for the funding of the Vet 
Centers. None of these matters relate to the text of the regulation, 
and we did not make any changes based on this comment.
    In the proposed rule, under paragraph (b)(1), we had stated that 
the title of DD Form 214 was Certificate of Release or Discharge from 
Active Service. We are amending paragraph (b)(1) to correct the title 
of DD Form 214 to Certificate of Release or Discharge from Active Duty.
    Although not directly related to any of the commenter's concerns, 
we are clarifying the language of proposed paragraph (c). The intent of 
proposed paragraph (c) was to provide referral services to individuals 
who were on active duty in theaters of combat, in areas of hostilities, 
or as otherwise stated in proposed paragraph (a), but whose discharge 
from service was under dishonorable conditions, and to their family 
members. Such referral services include obtaining mental health care 
and services outside of VA. We believe that the intent of this 
paragraph was not clearly stated as proposed and we have revised the 
introductory paragraph to now state: ``Upon request, VA will provide an 
individual who does not meet the eligibility requirements of paragraph 
(a) of this section, solely because the individual was discharged under 
dishonorable conditions from active military, naval, or air service, 
the following.'' We have also revised the wording of proposed paragraph 
(c)(2) for clarity.
    Based on the rationale set forth in the Supplementary Information 
to the proposed rule and in this final rule, VA is adopting the 
proposed rule as a final rule with the changes mentioned above.

Effect of Rulemaking

    Title 38 of the Code of Federal Regulations, as revised by this 
final rulemaking, represents VA's implementation of its legal authority 
on this subject. Other than future amendments to this regulation or 
governing statutes, no contrary guidance or procedures are authorized. 
All existing or subsequent VA guidance must be read to conform with 
this rulemaking if possible or, if not possible, such guidance is 
superseded by this rulemaking.

Paperwork Reduction Act

    The Paperwork Reduction Act of 1995 (at 44 U.S.C. 3507(d)) requires 
that VA consider the impact of paperwork and other information 
collection burdens imposed on the public. Under 5 CFR 1320.8(b)(2)(vi), 
an agency may not collect or sponsor the collection of information, nor 
may it impose an information collection requirement unless it displays 
a currently valid Office of Management and Budget (OMB) control number.
    This final rule will impose the following new information 
collection requirements. Section 17.2000(b) allows a veteran to submit 
a copy of a DD Form 214 or other appropriate documentation as evidence 
that the veteran served in a theater of combat operations or in an area 
during a period of hostilities in that area that would serve as the 
basis for establishing his or her eligibility to receive readjustment 
counseling. For example, receipt of one of the listed medals will be 
accepted as evidence to establish eligibility for readjustment 
counseling. As required by the Paperwork Reduction Act of 1995, VA 
submitted the information collection requirement to OMB for its review. 
OMB approved this new information collection requirement associated 
with the final rule and assigned OMB control number 2900-0787.

Regulatory Flexibility Act

    The Secretary hereby certifies that this final rule will not have a 
significant economic impact on a substantial number of small entities 
as they are defined in the Regulatory Flexibility Act, 5 U.S.C. 601-
612. This final rule will directly affect only individuals and will not 
directly affect small entities. Therefore, pursuant to 5 U.S.C. 605(b), 
this rulemaking is exempt from the initial and final regulatory 
flexibility analysis requirements of sections 603 and 604.

Executive Orders 12866 and 13563

    Executive Orders 12866 and 13563 direct agencies to assess the 
costs and benefits of available regulatory alternatives and, when 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, and other advantages; distributive impacts; 
and equity). Executive Order 13563 (Improving Regulation and Regulatory 
Review) emphasizes the importance of quantifying both costs and 
benefits, reducing costs, harmonizing rules, and promoting flexibility. 
Executive Order 12866 (Regulatory Planning and Review) defines a 
``significant regulatory action,'' which requires review by OMB unless 
OMB waives such review, as ``any regulatory action that is likely to 
result in a rule that may: (1) Have an annual effect on the economy of 
$100 million or more or adversely affect in a material way the economy, 
a sector of the economy, productivity, competition, jobs, the 
environment, public health or safety, or State, local, or tribal 
governments or communities; (2) Create a serious inconsistency or 
otherwise interfere with an action taken or planned by another agency; 
(3) Materially alter the budgetary impact of entitlements, grants, user 
fees, or loan programs or the rights and obligations of recipients 
thereof; or (4) Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
this Executive Order.''
    The economic, interagency, budgetary, legal, and policy 
implications of this regulatory action has been examined, and it has 
been determined to be a significant regulatory action under Executive 
Order 12866 because it may raise novel legal or policy issues arising 
out of legal mandates, the President's priorities, or the principles 
set forth in Executive Order 12866.

Unfunded Mandates

    The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C. 
1532, that agencies prepare an assessment of anticipated costs and 
benefits before issuing any rule that may result in the expenditure by 
State, local, and tribal governments, in the aggregate, or by the 
private sector, of $100 million or more (adjusted annually for 
inflation) in any given year. This final rule will have no such effect 
on State, local, and tribal governments, or on the private sector.

Catalog of Federal Domestic Assistance Numbers

    The Catalog of Federal Domestic Assistance program numbers and 
titles for this final rule are as follows: 64.005, Grants to States for 
Construction of State Home Facilities; 64.007, Blind Rehabilitation 
Centers; 64.008, Veterans Domiciliary Care; 64.009, Veterans Medical 
Care Benefits; 64.010, Veterans Nursing Home Care; 64.014, Veterans 
State Domiciliary Care; 64.015, Veterans

[[Page 57073]]

State Nursing Home Care; 64.018, Sharing Specialized Medical Resources; 
64.019, Veterans Rehabilitation Alcohol and Drug Dependence; 64.022, 
Veterans Home Based Primary Care; and 64.024, VA Homeless Providers 
Grant and Per Diem Program.

List of Subjects in 38 CFR Part 17

    Administrative practice and procedure, Alcohol abuse, Alcoholism, 
Claims, Day care, Dental health, Drug abuse, Foreign relations, 
Government contracts, Grant programs--health, Government programs--
veterans, Health care, Health facilities, Health professions, Health 
records, Homeless, Medical and dental schools, Medical devices, Medical 
research, Mental health programs, Nursing homes, Veterans.

    Approved: January 8, 2013.
John R. Gingrich,
Chief of Staff, Department of Veterans Affairs.
    Approved: June 5, 2013.
Jessica L. Wright,
Acting Under Secretary of Defense for Personnel & Readiness, Department 
of Defense.
    For the reasons set forth in the preamble, the Department of 
Veterans Affairs amends 38 CFR part 17 as follows:

PART 17--MEDICAL

0
1. The authority citation for part 17 continues to read as follows:

    Authority:  38 U.S.C. 501, and as noted in specific sections.

0
2. Add an undesignated center heading and Sec.  17.2000 to read as 
follows:

Vet Centers

Sec.  17.2000  Vet Center services.

    (a) Eligibility for readjustment counseling. Upon request, VA will 
provide readjustment counseling to the following individuals:
    (1) A veteran who served on active duty in a theater of combat 
operations during a period of war.
    (2) A veteran who served on active duty in an area in which 
hostilities occurred, or in combat against a hostile force during a 
period of hostilities.
    (3) A veteran who served on active duty during the Vietnam era who 
sought or was provided counseling under 38 U.S.C. 1712A before January 
1, 2004.
    (4) Any member of the Armed Forces, including a member of the 
National Guard or reserve, who served on active duty in the Armed 
Forces in Operation Enduring Freedom, Operation Iraqi Freedom or 
Operation New Dawn.
    (5) A family member of a veteran or servicemember who is eligible 
for readjustment counseling under paragraphs (a)(1) through (a)(4) of 
this section. For purposes of this section, family member includes, but 
is not limited to, the spouse, parent, child, step-family member, 
extended family member, and any individual who lives with the veteran 
or servicemember but is not a member of the family of the veteran or 
servicemember.
    (b) Proof of eligibility. With the veteran's or servicemember's 
consent, VA will assist in obtaining proof of eligibility. For the 
purposes of this section, proof of service in a theater of combat 
operations or in an area during a period of hostilities in that area 
will be established by:
    (1) A DD Form 214 (Certificate of Release or Discharge from Active 
Duty) containing notations of service in a designated theater of combat 
operations; or
    (2) Receipt of one of the following medals: The Armed Forces 
Expeditionary Medal, Service Specific Expeditionary Medal (e.g., Navy 
Expeditionary Medal), Combat Era Specific Expeditionary Medal (e.g., 
the Global War on Terrorism Expeditionary Medal), Campaign Specific 
Medal (e.g., Vietnam Service Medal or Iraq Campaign Medal), or other 
combat theater awards established by public law or executive order; or
    (3) Proof of receipt of Hostile Fire or Imminent Danger Pay 
(commonly referred to as ``combat pay'') or combat tax exemption after 
November 11, 1998.
    (c) Referral and advice. Upon request, VA will provide an 
individual who does not meet the eligibility requirements of paragraph 
(a) of this section, solely because the individual was discharged under 
dishonorable conditions from active military, naval, or air service, 
the following:
    (1) Referral services to assist such individual, to the maximum 
extent practicable, in obtaining mental health care and services from 
sources outside VA; and
    (2) If pertinent, advice to such individual concerning such 
individual's rights to apply to:
    (i) The appropriate military, naval or air service for review of 
such individual's discharge or release from such service; and
    (ii) VA for a VA benefits eligibility determination under 38 CFR 
3.12.
    (d) Readjustment counseling defined. For the purposes of this 
section, readjustment counseling includes, but is not limited to: 
psychosocial assessment, individual counseling, group counseling, 
marital and family counseling for military-related readjustment issues, 
substance abuse assessments, medical referrals, referral for additional 
VA benefits, employment assessment and referral, military sexual trauma 
counseling and referral, bereavement counseling, and outreach. A 
``psychosocial assessment'' under this paragraph means the holistic 
assessing of an individual's psychological, social, and functional 
capacities as it relates to their readjustment from combat theaters. 
Readjustment counseling is provided to individuals listed in paragraphs 
(a)(1) through (a)(4) of this section, and to family members under 
paragraph (a)(5) of this section, when it would aid in the readjustment 
of a veteran or servicemember.
    (e) Confidentiality. Benefits under this section are furnished 
solely by VA Vet Centers, which maintain confidential records 
independent from any other VA or Department of Defense medical records 
and which will not disclose such records without either the veteran or 
servicemember's voluntary, signed authorization, or a specific 
exception permitting their release. For more information, see 5 U.S.C. 
552a, 38 U.S.C. 5701 and 7332, 45 CFR parts 160 and 164, and VA's 
System of Records 64VA15, ``Readjustment Counseling Service Vet Center 
Program.''

(Authority: 38 U.S.C. 501, 1712A, 1782, and 1783; Pub. L. 111-163, 
sec. 304, 401, and 402)

    (The Office of Management and Budget has approved the 
information collection requirement in this section under control 
number 2900-0787.)

[FR Doc. 2013-22607 Filed 9-16-13; 8:45 am]
BILLING CODE 8320-01-P
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